Kirby Steel Products, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1259 (N.L.R.B. 1979)

Kirby Steel Products, Inc. and United Steelworkers of
America, AFL-CIO. Case 9 CA- 13457
June 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MtURPIIY
Upon a charge filed on February 5, 1979, by
United Steelworkers of America, AFL-CIO-CLC,
herein called the Union, and duly served on Kirby
Steel Products, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9. issued
a complaint and notice of hearing on March 2, 1979,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an administrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on December 28,
1978, following a Board election in Case 9-RC-
12562, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about January 5, 1979, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On March 14, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On March 19, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 3, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Official notice is taken of the record in the representation proceeding.
Case 9 RC 12562, as the term "record" is defined in Secs. 10268 and
102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See
LTV Electrosysiems, Inc., 166 NLRB 938 (1967), enfd 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967)., enfd. 415 F.2d 26
(5th Cir. 1969); Iniernype Co. v. Penello., 269 F. Supp. 573 (D.C.Va 1967).
Follett Corp., 164 NLRB 378 (1967). enfd. 397 F 2d 91 (7th ('ir 1968): Sec
9(d) of the Act, as amended
KIRBY STEEL PRODUtCTS, IN(C.
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent contends
that the Union's showing of interest was obtained
through supervisory participation and influence, and
that the Union does not represent an uncoerced ma-
jority of employees in the appropriate bargaining
unit. The General Counsel argues that all material
issues have been previously decided and there are no
litigable issues of fact requiring a hearing. We agree
with the General Counsel.
Our review of the record herein, including the rec-
ord in Case 9 RC 12562, discloses that pursuant to a
Stipulation for Certification Upon Consent Election
an election was conducted on September 29. 1978.
The tally showed 15 votes cast tbr and 10 against the
Union, with I challenged ballot, which was not suffi-
cient to affect the results of the election. Respondent
filed timely objections to conduct affecting the results
of the election, alleging essentially the same facts as
noted above.
On November 7, 1978, the Regional Director is-
sued his Report on Objections to election and recom-
mendations to the Board in which he found that the
supervisors in question were low level supervisors
whose conduct in signing cards, attending union
meetings, and wearing union bottons could not have
led employees to believe that the Employer favored
the Union inasmuch as its president expressed his an-
tiunion sentiment as late as the day before the elec-
tion. He accordingly recommended that Respon-
dent's objections be overruled and that the Union be
certified. On December 28, 1978, the Board adopted
the Regional Director's findings and recommenda-
tions and issued a certification of representative.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a
prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentative proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence. Nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made in
2 See Pirthurgh Plate Glass (o I. RR. 313 I;S l . 162 (1941):
Rules and Regulations of the Board, Secs 102 h67( t and 102 9(c~
242 NLRB No. 123
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the representation proceeding. We therefore find that
Respondent hs not raised any issue which is properly
litigable in this unfair labor practice proceeding. Ac-
cordingly, we grant the Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Kentucky corporation with its
principal facility located in Middlesboro. Kentucky,
where it is engaged in the manufacture of truck beds.
During the past 12 months, Respondent sold and
shipped goods valued in excess of $50,000 to points
outside the State of Kentucky.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO CLC,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its Middlesboro, Ken-
tucky facility, including plant clerical employees.
but excluding all office clerical employees, pro-
fessional employees, guards, group leaders and
supervisors as defined in the Act.
2. The certification
On September 29, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 9, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on December 28, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about January 5, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about January 5, 1979, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
January 5, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962): Commerce Company, d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
1260
KIRBY STEEL PRODI)CTS. IN(C.
Cir. 1964), cert. denied 379 U.S. 817: Burnett Con-
.struclion ('o(1pan1, 149 NLRB 1419. 1421 (1964).
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
Conclusions of Law
I. Kirby Steel Productions, Inc.. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers of America. AFL CIO
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees at
Respondent's Middlesboro. Kentucky. facilit). in-
cluding plant clerical employees, but excluding all of-
fice clerical employees, professional employees.
guards, group leaders, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since December 28. 1978. the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 5, 1979. and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit. Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) cf the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Kir-
by Steel Products, Inc., Middlesboro, Kentucky. its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay. wages. hours, and other terms and con-
ditions of employment with United Steelworkers of
America, AFL CIO CLC, as the exclusive bargain-
ing representative of its employees in the follo ing
appropriate unit:
All production and maintenance employees em-
ployed hb Respondent at its Middlesboro. Ken-
tuckv facilit. including plant clerical employees.
but excluding all office clerical employees, pro-
fessional employees. guards, group leaders and
supervisors as defined in the Act.
(b) In an like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
the respect to rates of pa!. wages. hours. and other
terms and conditions of emplojment. and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at Respondent's Middlesboro. Kentucky.
facility copies of the attached notice marked "Appen-
dix."3 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed b\ Respondent's representative, shall be
posted b Respondent immediately upon receipt
thereof, and be maintained b it for 60 consecutive
days thereafter. in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced. or covered by any other material.
(c) Notif' the Regional Director for Region 9. in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
In the even that this Order is enforced by a judgment of a United States
Court of Appeals. the vords in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIIL NOT refuse to bargain collectively
concerning rates of pay, wages. hours, and other
terms and conditions of employment with
United Steelworkers of America. AFL-CIO-
CLC, as the exclusive representative of the em-
ployees in the bargaining unit described below.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wli WIlI. NOI in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
Wi wI.L., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees
employed by Respondent at its Middleboro,
Kentucky facility, including plant clerical em-
ployees, but excluding all office clerical em-
ployees, professional employees, guards, group
leaders and supervisors as defined in the Act.
KIRBY SIEEI. PRODUCTS, INC.
1262